Appeal from the Circuit Court of McHenry County; the Hon.
Haskell M. Pitluck, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Petitioner and cross-respondent, George A. Bates (petitioner), brought this action for dissolution of marriage in the circuit court of McHenry County on April 30, 1980, alleging grounds of mental cruelty. Respondent and cross-petitioner, Mary Luise Bates (respondent), denied petitioner's allegations of mental cruelty and counterpetitioned for a legal separation. On October 28, 1982, the trial court denied petitioner's petition for dissolution of marriage. On February 25, 1983, the court granted respondent's cross-petition for legal separation and entered its final judgment on June 1, 1984, awarding respondent separate maintenance. After post-trial motions by both parties were denied, petitioner filed his notice of appeal on August 24, 1984, and respondent cross-appealed on August 27, 1984.
Petitioner was born on March 8, 1904. He is an investment counselor and has spent the majority of his efforts managing his own extensive properties as well as running the Chalet Golf Course located outside Cary. The golf course adjoins property known as Lakefield Farm where petitioner resides. Petitioner has one surviving child, Connie. Respondent was born on August 27, 1936. She is a registered nurse, but did not work during the marriage. Respondent has four children from a prior marriage: Susan (26), Scott (24), Katheryn (21), and Nancy (16), all of whom petitioner adopted. Custody was not an issue in the trial court, as petitioner did not request custody or visitation of the one remaining minor.
The parties were married on January 24, 1976. Petitioner moved out of the main residence of the estate on or about February 6, 1979, and into a second house also located on the property. He then filed this action on April 30, 1980, alleging grounds of mental cruelty. The temporary proceedings were tried piecemeal and concluded in a temporary order of support entered on December 19, 1980. Further, during the course of the trial proceedings numerous disputes arose between the parties regarding discovery, possession of petitioner's extensive art holdings, and the court's support orders. After separate hearings on the merits, the court denied petitioner's petition for dissolution and granted respondent's petition for legal separation.
On June 1, 1984, the court entered its final judgment, awarding respondent separate maintenance and resolving the remaining issues in the case. This judgment was amended on July 27, 1984, when the court denied the parties' post-trial motions. Because of the basis upon which we decide this appeal, a further review of the facts is not necessary.
The initial issue raised is whether the new "no-fault" provision of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat., 1984 Supp., ch. 40, par. 401(a)(2)) applies to this appeal. Petitioner argues that we should apply the new no-fault provision because it is the law in effect at the time of the appeal. Respondent argues we should not apply the new provision because it was not in effect at the time proofs were closed. Respondent relies on the general rule that a party may not raise a new theory on appeal that was not raised below and that, in any event, the new no-fault provision is not retroactive and cannot be applied to this case.
• 1 Petitioner filed his petition for dissolution on April 30, 1980. The trial court denied the petition in an interlocutory order on October 28, 1982. Thereafter, the court entered its final judgment on June 1, 1984, and petitioner filed his post-trial motion on June 29, 1984. Public Act 83-954, which added the new no-fault provision, became effective on July 1, 1984. On July 27, 1984, the court denied both parties' post-trial motions. The rule is well established that where the legislature has changed the law pending an appeal, a case must be disposed of by the reviewing court under the law in force when the appeal is decided, and not as it was when the decision was made by the trial court. (Rios v. Jones (1976), 63 Ill.2d 488; Illinois Chiropractic Society v. Giello (1960), 18 Ill.2d 306.) While we note that this case was not actually on appeal at the time the new law went into effect, but was still pending in the trial court on post-trial motions, we find the above rule applicable in light of the fact that the trial court had entered its final judgment and petitioner had filed his post-trial motion prior to the effective date of the new no-fault provision. See Rios v. Jones (1976), 63 Ill.2d 488; Caleca v. Caleca (1978), 63 Ill. App.3d 414.
Contrary to respondent's argument, our supreme court has recently held that the no-fault provision is retroactive. (In re Marriage of Semmler (1985), 107 Ill.2d 130, 136-37.) Further, it is axiomatic that the general waiver rule relied on by respondent does not apply when the new issue arises because of a change in law after the trial court's decision.
• 2 The no-fault provision allows a dissolution if three criteria can be established: (1) the parties have been separated for at least two years; (2) irreconcilable differences have caused an irretrievable breakdown of the marriage; and (3) attempts at reconciliation have failed or future attempts at reconciliation would be impractical and not in the best interest of the family. (Ill. Rev. Stat., 1984 Supp., ch. 40, par. 401(a)(2).) Irreconcilable differences has been defined as the existence of marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed. (In re Marriage of Walton (1972), 28 Cal.App.3d 108, 116, 104 Cal. Rptr. 472, 479.) An irretrievable breakdown of a marriage has been defined as where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation. Harwell v. Harwell (1974), 233 Ga. 89, 90, 209 S.E.2d 625, 627.
• 3 When a court of review undertakes to decide an issue not raised below, it is essential that all factual matters necessary to the determination of the new issue be present in the record. (People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303, 313.) We find the present record sufficient to decide the present issue. It was undisputed at trial, and the trial court's judgment specifically found, that the parties separated in February of 1979, and that they have lived apart since that time. The record also shows that the parties attempted reconciliation and obtained counseling, but that the attempt failed. Lastly, it is clear from petitioner's petition for dissolution, respondent's counterpetition for legal separation, and the extensive trial testimony relating the difficulties, disputes and bitterness between the parties that there are irreconcilable differences between the parties and that the parties no longer wish to live together. Petitioner, therefore, is entitled to a judgment of dissolution under our State's no-fault provision.
Since we have determined that the trial court's judgment of legal separation must be reversed and a judgment of dissolution entered, we do not reach petitioner's arguments that the trial court erred in refusing to admit certain memoranda and testimony into evidence or that its finding on the lack of proof of mental cruelty was against the manifest weight of the evidence. Nor do we reach the issue of whether the trial court, in granting the legal separation, abused its discretion in enjoining petitioner from transferring or encumbering his assets during the legal separation.
The next issue raised is whether the trial court erred in requiring the establishment of a $250,000 educational trust for Scott, Katheryn and Nancy. We will address this issue on appeal since it will likely arise on remand under the judgment of dissolution. Petitioner argues that there were no special circumstances in the present case to justify imposing such a trust and that, even if the trust were proper, the amount ordered is greatly in excess of what is needed. Respondent argues that petitioner's demonstrated unwillingness to make periodic educational payments and respondent's intent to retaliate against the children justify the imposition of the trust.
• 4 A child support trust for the education of any minor or dependent child may be established pursuant to section 503(g) of the IMDMA, which states:
"The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties." (Ill. Rev. Stat. 1983, ch. 40, par. 503(g).)
A trial court, in determining whether a trust should be created, however, must initially consider whether the trust is necessary to "promote and protect the best interests of the children" as required by the statute. (In re Marriage of Miller (1983), 112 Ill. App.3d 203, 210.) The imposition of a section 503(g) trust is inappropriate, absent evidence of a need to protect the interests of the children and, therefore, is inappropriately applied to a responsible parent. ...