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03/23/87 In Re Marriage of Norma Pahlke

March 23, 1987

IN RE MARRIAGE OF NORMA PAHLKE, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

FRAZER PAHLKE, Respondent-Appellant (Ute Schmidt,

a/k/a Ute Domnick, Third-Party

Defendant-Appellant)

507 N.E.2d 71, 154 Ill. App. 3d 256, 107 Ill. Dec. 407 1987.IL.351

Appeal from the Circuit Court of Cook County; the Hon. Monica D. Reynolds, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This is the second appeal concerning the Disposition of the marital property in the divorce proceedings between the petitioner, Norma Pahlke, and the respondent, Frazer Pahlke. In our earlier decision we affirmed a preliminary order of the trial court which held that the sale of the marital residence by Frazer to third-party defendant, Ute Schmidt, was a sham transaction and granted temporary possession of the home to Norma. (In re Marriage of Pahlke (1983), 120 Ill. App. 3d 1009, 458 N.E.2d 1141.) Frazer now appeals from the final judgment entered in the marriage dissolution proceedings contending that the trial court (1) abused its discretion in dividing the marital property unequally in favor of Norma; (2) abused its discretion in awarding Norma maintenance and child support; (3) improperly required Frazer to pay the major portion of Norma's attorney fees and the attorney fees for the minor children; and (4) erred in awarding Norma prospective attorney fees to defend Frazer's appeal. Frazer and Ute Schmidt both argue on appeal that the final judgment of the trial court declaring the sale of the parties' marital residence to be a sham transaction was against the manifest weight of the evidence.

The parties were married in May 1964. Four children were born to the marriage. In August 1982, Norma filed a petition for dissolution of marriage. Prior to trial the parties entered into a stipulation that each of them would have custody of two of the four minor children of the parties. Frazer was 44 years old at the time of trial and Norma was 42 years old.

At trial, Frazer testified that in 1976 he purchased the marital residence in Glenview, Illinois, for $93,500. $24,000 of the purchase price was loaned to him by his mother, Lillian Pahlke. Title to the home was placed in a land trust with Frazer as the beneficiary and Norma as the contingent beneficiary. Without informing Norma, Frazer sold the marital home in April 1982 to Ute Schmidt for $90,000. Thereafter, Norma filed a petition seeking imposition of a constructive trust in her favor on the marital residence.

At a preliminary hearing in August 1982, the trial court entered an order granting the petition and declaring the sale of the residence to be a sham and awarding temporary possession of the residence to Norma. On review, this court affirmed the trial court's finding that the sale was a sham transaction "where the third party and the husband may have acted in collusion to deprive the wife and children of the marital home." (120 Ill. App. 3d 1009, 1015, 458 N.E.2d 1141, 1146.) We further affirmed the award to Norma of temporary possession of the marital residence and vacated that portion of the order creating a constructive trust.

Frazer further testified that at the time he sold the marital residence, he sold other items of personal property to Ute Schmidt which the parties had acquired during the marriage, including a piano, a lawnmower, and a freezer. Frazer had earned approximately $23,000 in 1983 from his employment as an environmental engineer. He had a pension benefit through his employer with a vested monthly pension benefit in the amount of $324 at age 65. The value of the accrued pension at the time of trial was $5,200. Frazer also owned a truck which he purchased in May 1982 for $16,400. He stated that during the marriage, his wife suffered from periods of depression, schizophrenia, and unhappiness.

Norma testified that she was employed as a staff nurse in a nursing home earning approximately $18,000 per year. She stated that she had several outstanding medical and dental bills both for herself and her children. She further testified that she owed her mother the sum of $15,000 at the time of trial. She had borrowed these funds in a three-to-four-month period after she had moved back into the marital residence and when she was unemployed. She stated that $11,000 ...


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