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In Re Marriage of Aud

OPINION FILED APRIL 8, 1986.

IN RE MARRIAGE OF JOAN C. AUD, PLAINTIFF-APPELLANT, AND FRED L. AUD, DEFENDANT-APPELLEE.


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

PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Joan C. Aud, has perfected this appeal from a judgment of dissolution of marriage entered in the circuit court of Madison County. This appeal raises the question of the propriety of the disposition of property under the dissolution decree. The following facts were adduced at trial:

On January 1, 1972, the parties were married in Las Vegas, Nevada. At the time of the marriage, the defendant, Fred Aud, was a dentist who operated a dental office in Collinsville, Illinois; the plaintiff was a receptionist and switchboard operator for a company in Sunset Hills, Missouri. Immediately after the parties were married, plaintiff terminated her employment, a decision in which defendant acquiesced. During the 11-year marriage, plaintiff worked sporadically at the dental office and part-time at a floral shop. No children were born of this marriage.

The record establishes that the parties acquired a substantial amount of real and personal property during the marriage. The real property included unimproved real estate in Florida, Jamaica, and White County, Illinois, and a house at Big Bear Estates, Lake of the Ozarks, Missouri. Plaintiff was awarded the real estate in Florida and Jamaica; defendant was awarded the White County property because this had been conveyed to him by his mother and, consequently, constituted non-marital property. The house and lot at Big Bear Estates was ordered sold, with the net proceeds to be divided evenly between the parties. The defendant was ordered to pay all mortgage payments, taxes, and expenses on this property until sold and was to receive credit for one-half of these expenditures upon sale.

The personal property included home furnishings, personal effects, automobiles, appliances, a Criscraft boat, AT&T stocks, several checking and savings accounts, insurance policies, a dental practice in Collinsville established in 1957, a professional dental corporation doing business in Missouri, which was established in 1981, and two "inventions" which the defendant used in his dental practice. With the exception of the home furnishings at Big Bear Estates (which were ordered to be sold with the real estate), the home furnishings, personal effects, automobiles, and appliances were divided in accordance with the parties' agreement. The Criscraft boat was found to be marital property and was awarded to the defendant because it had been pledged as security for a loan. The AT&T stocks, which were held jointly by defendant and his mother, were found to be non-marital property and were awarded to defendant. All of the checking and savings accounts standing in defendant's name alone were awarded to defendant because they were mostly business related and those that were not were of minimal value. Plaintiff was awarded any existing bank accounts in her name. The insurance policies were awarded to the named insured, with complete freedom to change beneficiaries. The dental practice in Collinsville, which was established prior to the marriage, was found to be the non-marital property of defendant. The professional dental corporation in Missouri, which was established during the marriage, was found to be marital property. The dental practice in Collinsville was valued at $68,000; the professional dental corporation in Missouri was valued at $131,000. The "inventions" were found to be of no value to anyone except defendant because the cost of developing a patentable prototype would be in excess of $25,000 without any guarantee of profit.

At trial, the plaintiff contended that defendant dissipated her share of the marital property by (1) ignoring his dental practice in Collinsville, (2) paying exorbitant salaries to his employees and (3) spending thousands of dollars to care for his mother. The court found that although the defendant's dental practice in Collinsville had diminished near the end of the marriage, this was caused by depressed economic conditions and by defendant's concentration on the development of the professional dental corporation. Since the professional dental corporation was a marital asset and the Collinsville practice was a non-marital asset, the court reasoned that defendant had not dissipated the marital property by ignoring his Collinsville dental practice as alleged by plaintiff. Moreover, the court held that the amounts of money defendant paid to his two employees was not a blatant diversion of funds so as to constitute dissipation of marital assets.

As to the thousands of dollars the defendant gave to his mother, the trial court found that although the defendant had no legal obligation to support his mother, he did have a moral obligation to do so. Thus, the court concluded that defendant's support of his mother was a necessary expense and "a liability under 503(c)(7) to be considered in the disposition of property and possible maintenance." The evidence establishes that plaintiff acquiesced in these payments during the marriage.

Plaintiff received a total of $42,250 in marital assets. Defendant received $170,550 in marital assets and, since he was the only party capable of paying them, $140,154.89 in marital debts. The court ordered defendant to pay the cost of tuition, fees, and materials for plaintiff to attend two years at Belleville Area College so that plaintiff could become gainfully employed. Defendant was also ordered to pay $25,000 cash as a property settlement to plaintiff within two years and to pay maintenance of $1,200 per month until October 1986, when the award would be subject to modification in accordance with In re Marriage of Asch (1980), 100 Ill. App.3d 293, 298-99, 426 N.E.2d 1066, 1069-70.

Plaintiff appeals from the judgment of the circuit court, asserting that: (1) the valuation and allocation of the marital and non-marital assets and debts was biased in favor of defendant, (2) the Collinsville dental practice should have been found to be marital property, and (3) the defendant's "spendthrift" behavior resulted in a dissipation of assets which should have been considered when the assets were distributed.

• 1 Prior to oral argument in this case, defendant moved to strike certain portions of plaintiff's brief on the ground that they refer to matters outside the record. This motion, in part, objects to the first two sentences on page 26 of plaintiff's brief, in which plaintiff makes reference to materials prepared by the Bureau of Census. This objection is unfounded due to the fact that we may take judicial notice of census materials. See Murdy v. Edgar (1984), 103 Ill.2d 384, 394, 469 N.E.2d 1085, 1090; United States v. United Brotherhood of Carpenters & Joiners of America, Local 169 (7th Cir. 1972), 457 F.2d 210, 214-16.

• 2 Defendant's motion to strike further makes reference to the proposition that current laws and regulations do not fully address sexual discrimination against women in the labor force. Since this is not an authoritatively settled matter of common knowledge, we may not take judicial notice of this proposition. (See Motion Picture Appeal Board v. S.K. Films (1978), 65 Ill. App.3d 217, 226, 382 N.E.2d 103, 110.) Consequently, defendant's objection in this regard is well taken, and such portion of page 26 of plaintiff's brief is ordered stricken.

• 3 Defendant further moves that this court strike those allegations appearing on page 26 of plaintiff's brief in which she makes reference to the proposition that one who returns to the work force late in life will probably have very little retirement income and, consequently, will probably be required to rely on public assistance. Since entitlement to public assistance involves a multitude of considerations other than the current income of applicants for assistance, we may not take such judicial notice requested by plaintiff.

• 4 Defendant also moves to strike that portion of page 26 of plaintiff's brief in which reference is made to a statistical survey compiled by Linda Schroeber of the New York Law School. We find the citation to this alleged survey to be too imprecise for this court to take judicial notice of its contents. (See Murdy v. Edgar (1984), 103 Ill.2d 384, 394, 469 N.E.2d 1085, 1090.) Consequently, that portion of plaintiff's brief is ordered stricken.

• 5 Defendant next moves to strike a portion of page 14 of plaintiff's brief in which reference is made to unsuccessful attempts on plaintiff's part to obtain the use of certain marital real estate. Since there is no citation to the record for this proposition, and since this proposition apparently refers to matters occurring after trial, we will not take judicial notice of this proposition. (See 87 Ill.2d R. 341(e)(7); Nordine v. Illinois Power Co. (1964), 48 Ill. App.2d 424, 439, 199 N.E.2d 34, 42.) Consequently, the two sentences on page 14 of plaintiff's brief referring to such matters are ordered stricken.

• 6 Finally, defendant moves to strike a paragraph at the top of page 27 of plaintiff's brief which makes reference to a survey performed by sociologist Lenore Weitzman of Stanford. We find the citation to this alleged survey too imprecise for this court to take judicial notice of its contents. (See Murdy v. Edgar (1984), 103 Ill.2d 384, 394, 469 N.E.2d 1085, 1090.) Consequently, such paragraph on page 27 of plaintiff's brief is ordered stricken.

• 7 A circuit court's resolution of property division is fettered only by the range of reason, and its judgment will not be disturbed absent an abuse of discretion. In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but whether the trial court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (In re Marriage of Lee (1979), 78 Ill. App.3d 1123, 1127, 398 N.E.2d 126, 129.) Although plaintiff has alleged actual prejudice of the circuit court judge who presided, she acknowledges that no record was made of the hearing on the motion in which she alleges actual prejudice. We therefore conclude that any contention of prejudice on the part of the trial court has been waived by plaintiff. (See In re Estate of ...


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