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In Re Marriage of Earhart



Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.


Respondent, Donald Earhart, appeals from those portions of a judgment for dissolution of marriage relating to the division of marital property and child support. On appeal Donald claims the trial court erred in (1) refusing to permit his witness to testify as an expert regarding the value of Donald's pension; (2) denying his request for a continuance and (3) ordering Donald to pay $350 per month as child support for the parties' minor child.

Donald and Aurelia Earhart were married January 25, 1969. A petition for dissolution of marriage was filed by Aurelia on September 9, 1981. A judgment for dissolution of marriage was entered by the trial court on November 9, 1983. Donald subsequently filed a motion for reconsideration on December 9, 1983. The motion was denied. This appeal followed. We affirm.

The Earharts were married for 14 years and have one child, Christopher, age 15. Aurelia is an employee of the Suburban Bank Group in Rolling Meadows. Donald is employed by the United States Postal Service. The parties' major assets are the marital home and Donald's pension with the postal service.

With respect to the value of Donald's pension, Aurelia called Melton Q. Ellenbui as her expert witness. Ellenbui testified that he is a consulting actuary employed by A.S. Hansen Consulting Actuarial Firm. Ellenbui also testified that he has been an actuary for over 32 years and has primarily worked in the pension-plan area. The witness further testified that throughout his career he has evaluated future obligations, including pensions, to determine their present worth and he presently reviews actuarial evaluations and the calculations of other A.S. Hansen employees. Ellenbui then proceeded to explain how he determined the present value of Donald's pension to be $325,500 and estimated the marital attribution at $141,400.

Thereafter, Donald called John W. Damisch, an attorney, as his expert witness to testify regarding the present value of his pension. Damisch was questioned regarding his expertise in the area of pension valuation. The witness initially testified that he is an attorney who has been engaged in the practice of law since 1950. Damisch also testified that he has handled a considerable number of divorce cases where a pension fund has been involved. Damisch additionally testified that he had attended seminars sponsored by the Chicago Bar Association committee on matrimonial law and had studied the book Business Analysis I by Texas Instruments, which explains how to calculate compound interest and find the present value of money. Damisch also testified that he took a basic computer course in 1980 and another course in 1983 but did not use a computer to value Donald's pension. Damisch further testified that he had examined a pamphlet containing questions and answers concerning Federal civil service retirement law and had been advised of Donald's date of birth, date of service in the armed forces, date of employment with the postal service, date of marriage, and present annual gross rate of compensation. Damisch also emphasized that he is not an actuary, and expressed concern about an earlier discussion between the parties' counsel and the trial court wherein he was referred to as an actuary.

Following the testimony set forth above, Damisch was presented with a hypothetical question comprised of the stipulated facts concerning Donald's date of birth, beginning of government service, gross income, the dates of Donald's marriage and divorce, and his age for retirement. The witness was then asked to render his opinion on the present fair cash market value of Donald's pension. At this point, the following colloquy occurred:

"MR. CLARKE: Objection your Honor.

THE COURT: Sustained.

MR. SOLZAN: Judge, if I might, I am seeking to elicit from the witness the basic valuation that we are getting to in this case.

THE COURT: I know what you are trying to elicit.

THE COURT: Are you asking me to put this witness on as an expert?

MR. SOLZAN: That's correct.

THE COURT: I don't think his qualifications at this point indicate to me he can testify as an expert. * * *

Now, if you want him to testify other than as an expert that is something else, but I am sustaining the objection based upon the fact that he has not been shown to be an expert in this field.

THE COURT: With all due respect to Mr. Damisch I am sure Mr. Damisch understands that I cannot allow him to testify as an expert on pensions. He has had a lot to do with pension funds in the practice of law, in the practice of law in which he engages ...

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