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In Re Marriage of Callaway

OPINION FILED DECEMBER 15, 1986.

IN RE MARRIAGE OF GREGORY CALLAWAY, PETITIONER-APPELLEE, AND MURIEL CALLAWAY, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. William E. Peterson, Judge, presiding.

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 21, 1987.

Respondent, Muriel Callaway, appeals from that part of a judgment for dissolution of marriage awarding maintenance and allocating marital property. She contends that the trial court erred: (1) in allowing a witness not listed on the pretrial memorandum to testify; (2) in modifying a prior decree after petitioner acted in reliance on that judgment by remarrying; (3) in unjustly allocating the property; (4) in incorrectly valuing petitioner's pension plan; and (5) in terminating maintenance after five years and failing to award permanent maintenance.

The parties were married on November 16, 1951. Five children were born to the marriage, only one of whom was a minor when petitioner, Gregory Callaway, filed his petition for dissolution of marriage on January 7, 1981. At that time, petitioner was 45 years old and employed as a business manager at Kennedy-King College in Chicago earning $30,000. Respondent was a 47-year-old homemaker who had never worked outside the home.

An order was entered on February 17, 1981, directing petitioner to continue to make mortgage payments on the marital home and to pay respondent 30% of his net earnings for temporary support. This amount was reduced to 20% in a subsequent order based on respondent's refusal to accept offered employment.

At the time the initial judgment of dissolution was entered on February 23, 1983, the trial court made certain findings relative to the value of marital property and other economic issues. The court found that the marital home was valued at $40,900 with a $6,000 mortgage; that the parties owned a 1979 Volkswagon automobile valued at $700; that the parties held a note payable to petitioner in the amount of $5,000; that petitioner was vested in a pension plan valued at $31,109, from which he would receive $863 per month at age 55 or $1,156 per month at age 60; that petitioner's gross salary was $33,500; and that respondent had been offered three to five jobs during the pendency of the action, paying from $4.95 to $6.90 per hour, which she had declined to accept.

Based on these findings, the trial court made a disposition as to property, maintenance, and child support. That portion of the judgment was vacated on April 23, 1984, and the matter was reassigned for trial. The only issue before the court at the subsequent trial was the issue of maintenance.

After trial the court awarded respondent the marital home and furniture. She was also awarded rehabilitative maintenance for five years in the amount of $480 per month until the mortgage on the marital home had been paid and thereafter in the amount of $300 per month. Petitioner was awarded his pension plan, the 1979 Volkswagon automobile, and the judgment note executed by his sister. Judgment was entered on August 7, 1985, and respondent now brings this appeal.

• 1 Respondent's contention that the court erred in permitting one of petitioner's witnesses to testify although his name was not on a pretrial memorandum has no merit. Petitioner was not required to disclose the names or addresses of his witnesses under the rules of civil procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1003(c).) Respondent took no written discovery or depositions in this case and cannot now rely on her own lack of diligence in preparing for trial as a basis for barring petitioner's witness.

• 2 Respondent's arguments that the award of property was unjust and that the court improperly modified a prior decree after petitioner acted in reliance on that judgment by remarrying were not addressed in her brief. Pursuant to Supreme Court Rule 341 (103 Ill.2d R. 341(e)(7)), these issues are thereby waived.

• 3 In regard to the property issue, however, the clearly established rule is that the trial court has broad discretion to apportion property in just proportions and a reviewing court will not disturb that court's decision absent an abuse of discretion. (In re Marriage of Bentivenga (1982), 109 Ill. App.3d 967, 971, 441 N.E.2d 336.) We find no abuse of discretion here.

The trial court awarded the petitioner his pension plan, with a value of $31,809.02, a judgment note in the amount of $5,000, and a 1979 Volkswagon worth $700; all of which totaled $37,509.02. Respondent received the marital home, valued at $34,900, and maintenance in the amount of $18,000, totaling $52,900. the combined value of all the marital assets was $90,409.02. The judgment entered by the trial court awarded respondent 59% of the assets, while petitioner was awarded 41% of the marital assets; a distribution clearly within the statutory mandate of equitable apportionment. Ill. Rev. Stat. 1985, ch. 40, par. 503(c).

• 4 Respondent also waived her claim of error regarding the valuation of petitioner's pension plan by failing to object to the findings in the original proceedings and by failing to produce any contradictory evidence as to value in the trial court.

Respondent's reliance on In re Marriage of Kundit (1982), 107 Ill. App.3d 310, 437 N.E.2d 777, is misplaced. In Kundit, both parties failed to present any evidence of the value of the husband's pension fund, and the trial court assigned it an estimated value. On appeal, the husband argued that the wife had waived her right to appeal on that issue by her failure to present evidence as to the value of the fund. The appellate court held that the issue was not waived on appeal because no ...


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