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06/03/87 In Re Marriage of Barbara Partyka

June 3, 1987

IN RE MARRIAGE OF BARBARA PARTYKA, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

and LEONARD PARTYKA, Respondent-Appellee

511 N.E.2d 676, 158 Ill. App. 3d 545, 110 Ill. Dec. 499 1987.IL.743

Appeal from the Circuit Court of Cook County; the Hon. Charles J. Grupp, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. WHITE and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Petitioner, Barbara Partyka, appeals from a judgment of dissolution of marriage entered by the circuit court of Cook County on December 17, 1984, and from a post-judgment order entered on June 21, 1985, which granted the motion of respondent, Leonard Partyka, to strike her petition for rule to show cause with prejudice. Petitioner contends that her petition sought an arrearage in "support" of $8,575.40 pursuant to a temporary order of support entered on March 29, 1984. That order provided for respondent's payment of $100 per week in maintenance and child support and the expenses of the marital home, including the mortgage and utilities.

On appeal, petitioner contends: (1) the trial court abused its discretion in dividing the property because it did not take into consideration respondent's dissipation of $77,000 in marital assets and the parties' relative opportunities to acquire future income and assets as it was required to under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)); (2) the court erred in striking her post-judgment petition because past due installments of support become vested when due and a court is powerless to reduce or eliminate them. Petitioner maintains that an award of 58% of the marital property to respondent, excluding the parties' Barrister Equipment Account, which was either worth $25,000 or nothing, and the $77,000 allegedly dissipated by respondent, or an award of 69% of the marital property to respondent including the $77,000 in dissipated assets exceeds the bounds of reason and is not in just proportions as required under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)), particularly in view of the fact that the petitioner was barred from seeking maintenance.

Respondent contends that the trial court did consider all of the factors enumerated in section 503 of the Act and that it awarded petitioner two-thirds of the marital property and respondent only one-third. To reach this Conclusion, respondent contends, in effect, that the only marital assets awarded to him which had any value were the parties' Kerrigan Lewis stock, his Individual Retirement Account and the parties' partial interest in one of two condominiums. Respondent ignores the value of his 1981 Cadillac automobile because it had a $12,000 encumbrance, the parties' Fidelity Fund Cash Reserve Account (Fidelity Fund) because it was allegedly exhausted by the parties' tax debts, and a debt due from Alex Solomon because it was allegedly uncollectable.

The following facts are relevant to this appeal. The parties were married in 1966 and two children were born during the marriage. Respondent received a bachelor's degree in 1968 and a master's degree in business administration in 1970. He worked at Dearborn Wire and Cable Company (Dearborn Wire) from 1972 to July 1983. From 1978 to 1983, respondent was vice-president of sales and marketing. Respondent earned $138,000 in 1982 and $110,000 in 1983 from Dearborn Wire. He left that company in July 1983 to take a $40,000-per-year position with KSM Electronics. Petitioner received a bachelor's degree in art education in 1972. She did not work from 1968 to 1982 except for brief periods in 1974 and 1979 when she worked as a substitute teacher. In 1982, she obtained employment in the cosmetics department of Marshall Field's and worked there for approximately nine months. At the time of trial, petitioner was "on call" as a substitute teacher, for which she would be paid $44 per day.

The parties ceased living together as husband and wife on or near December 28, 1981, although respondent resided in the marital home from time to time thereafter. Petitioner filed a petition for legal separation on August 30, 1982, which ultimately was amended to a petition for dissolution of marriage on October 23, 1983. Respondent did not contest petitioner's grounds for dissolution and a bench trial regarding the property division commenced on October 21, 1983.

The trial court awarded petitioner: the marital home, which had an equity value of $95,000; a 1983 Pontiac automobile, which had been purchased with a down payment of $6,118 in marital assets; her jewelry and the household furnishings in her possession. The court awarded respondent: the Fidelity Fund, worth $47,189, out of which it first ordered that the parties' tax liabilities for 1982-83 and prior years be paid; the $34,781 proceeds of sale of the Kerrigan Lewis stock; his $11,926 IRA; the parties' interest in two condominiums; any monies to be received from the parties' Barrister Equipment Account; any monies to be received from Alex Solomon; a 1981 Cadillac automobile; his jewelry and the household furnishings in his possession. The court also awarded petitioner $130 per week in child support and barred the parties from seeking maintenance from each other.

Additionally, the evidence adduced at trial revealed the following. The parties' tax liabilities for the years 1981 through 1983 would be approximately $33,656 plus penalties. One of the condominiums owned in part by the parties was in foreclosure and the other was worth $7,000 to them. The Barrister Equipment Account had been purchased for $25,000 to provide the parties with a tax benefit for the years 1982 and 1983, but the parties disagreed whether the investment would have any value thereafter. Alex Solomon owed the parties $23,000 from a $40,000 business loan. The 1981 Cadillac automobile had been purchased with a trade-in of the parties' 1978 Toyota automobile, for which they received a $9,000 credit. No value was placed on the parties' jewelry or the household furnishings in their possession.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. ...


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