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In Re Marriage of Skahn

OPINION FILED NOVEMBER 14, 1986.

IN RE MARRIAGE OF ELIZABETH SKAHN, PETITIONER-APPELLEE, AND KENNETH SKAHN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Norman N. Eiger, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In consolidated appeals from certain orders in an action for dissolution of marriage, respondent contends that the trial court erred in (1) failing to ascertain the value of the parties' assets prior to rendering its distribution order and (2) ordering him to (a) reimburse petitioner for expenditures she made and (b) pay excessive attorney fees.

On September 13, 1985, judgment was entered dissolving the marriage of Elizabeth Skahn (petitioner) and Kenneth Skahn (respondent), awarding the parties joint custody of their 14-year-old son, and apportioning their property and assets. Testimony and evidence presented at trial established that the parties were married in May 1970 and separated in February 1983. At the time of dissolution, respondent, age 42, was employed as a civil engineer by the United States Environmental Protection Agency at an annual salary of approximately $39,000, from which he received a net income of $2,026 per month. Petitioner, age 37, had been trained as a draftsman but had not been employed in that field since 1980. Since that time she worked periodically as a secretary and as a manager of various small businesses for which she earned net salaries ranging from $98 to $200 per week. At the time of trial, petitioner was unemployed and in reasonably good health. Because this appeal relates only to the propriety of the orders pertaining to the property division and attorney fees, it is unnecessary to summarize the remainder of the extensive record of the numerous hearings preceding the judgment. Rather, we will incorporate only those portions of testimony and evidence, and the trial court's findings thereon, which are relevant to the issues as they are discussed.

In its written order, the trial court awarded to each party one of their two automobiles, all jewelry, gifts and non-marital property acquired before and during the marriage, and a 50% interest in the benefits accrued in respondent's pension plan during the marriage. The trial court also awarded to petitioner all interest in two parcels of jointly owned real estate and the majority of their household furnishings and ordered respondent to pay her attorney fees and to reimburse her for certain expenditures she had made prior to the dissolution.

OPINION

Respondent contends generally that the portions of the judgment relating to the property distribution must be reversed and this cause remanded for a new trial thereon because the value of the property was not established at trial and, thus, it cannot be determined whether the overall disposition was equitable.

• 1 Turning first to the pension plan, respondent argues that Illinois law provides that the trial court may award each party a percentage of a distributable pension plan only where its present value cannot be ascertained or where no other marital property is available to offset the pension award (In re Marriage of Hunt (1979), 78 Ill. App.3d 653, 397 N.E.2d 511), and that in this case the 50% interest awarded to petitioner was inappropriate because (1) the present value of the pension could have been determined by actuarial evidence and (2) there was other marital property of unknown value awarded to petitioner which offset the pension benefits.

Not only do we believe that respondent has oversimplified and, thus, distorted the holding in Hunt — in which the primary issue was whether the parties' pension plans were marital property — but also that Hunt and the other authorities cited by respondent are factually distinguishable from and, therefore, inapplicable to the case at bar. In fact, after a review of the record in its entirety, we find respondent's argument that they are controlling to be disingenuous at best.

Following certain stipulations at the first hearing on this case, the trial court asked the attorneys:

"What about his pension plan? We have to know and the court has to have this information on the record. This is required of us. We've got to know what his pension will bring him, if and when. I've got to know specifically and positively for the record as to whether its a distributable asset. Under normal circumstances all pension rights are assets which are distributable by a court, so you'd better be careful what you're doing here."

In an ensuing discussion, respondent himself informed the court of the exact amount he had contributed to his pension fund as of three months earlier, the percentage of his gross wages deducted from his paycheck each month for the pension, and the approximate monthly benefit to which he would be entitled based on the total amount of contributions made during the marriage when the pension became payable, following which a stipulation was entered into by the attorneys as to these figures. At the next hearing, when the subject of the pension arose again during examination of respondent by petitioner's attorney on matters relating to his income and expenses, the trial court interjected:

"I want to know what those figures are. I will ask that I be given a summary of what this man earns with the proper deductions.

Another thing the court will require because the Courts have held that we cannot make any distribution of assets unless we know precisely what the value of a pension is and whether it is distributable. * * * I want an actuary in here or somebody in authority to give us some value on that and you can stipulate it away if you * ...


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