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08/12/87 In Re Marriage of N. Joseph Di Angelo

August 12, 1987

IN RE MARRIAGE OF N. JOSEPH DI ANGELO, PETITIONER-APPELLANT


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

and Cross-Appellee, and MITZIE DI ANGELO,

Respondent-Appellee and Cross-Appellant

512 N.E.2d 783, 159 Ill. App. 3d 293, 111 Ill. Dec. 394 1987.IL.1157

Appeal from the Circuit Court of Du Page County; the Hon. Philip J. R. Equi, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

This consolidated appeal is from orders of the circuit court of Du Page County entered in connection with the dissolution of the marriage of petitioner, N. Joseph DiAngelo, and respondent, Mitzie DiAngelo. Petitioner appeals from the judgment for dissolution of marriage, an order modifying that judgment, and an order awarding equitable maintenance to respondent pending this appeal. Respondent cross-appeals from the judgment for dissolution of marriage and the order modifying that judgment.

Petitioner and respondent were married on August 15, 1978. Beginning in 1982, the parties experienced periodic marital difficulties, which included multiple separations and reconciliations. They separated a final time in January 1985, and, following a hearing, their marriage was dissolved on July 17, 1986. The judgment was modified by an order dated August 19, 1986, and these two orders taken together resolved all of the issues in the case, including those concerning dissolution of the marriage, property classification and distribution, and maintenance. A separate order entered subsequently granted petitioner a stay pending his appeal and scheduled a hearing whether, and how much, equitable maintenance should be paid to respondent pending the appeal. After the hearing, the court ordered petitioner to pay respondent $800 per month in equitable maintenance pending appeal. This appeal consolidates the appeals and the cross-appeal taken from the various orders entered in this case.

The issues raised on appeal concern two subjects: the distribution of property between the parties and the award of equitable maintenance, both pursuant to the provisions of the Illinois Marriage and Dissolution of Marriage Act . (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) With respect to the property distribution, petitioner contends that the award of $183,000 in property to respondent was against the manifest weight of the evidence and that the trial court abused its discretion when it found that jewelry of respondent's, which was disposed of by petitioner, was worth $12,000. Respondent contends on cross-appeal that the trial court erroneously classified the entirety of an individual Retirement Account and a pension as petitioner's nonmarital property. With respect to equitable maintenance, petitioner contends that the trial court lacked jurisdiction to award it and that its award was an abuse of discretion and against the manifest weight of the evidence. We affirm the order awarding equitable maintenance, reverse the property distribution provisions of the judgment of dissolution of marriage as modified, and remand for a new hearing with respect to the classification and distribution of property.

Three issues are raised concerning the classification and distribution of property. We will first address the issue raised by respondent on cross-appeal challenging the trial court's treatment of petitioner's entire pension and IRA as his sole non-marital property.

For many years prior to the marriage of the parties, and through the time of the hearing, petitioner was employed by the Allstate Insurance Company. Through his employment, petitioner owned a profit sharing account worth $37,210.48 and an interest in a pension plan which had a cash value of $97,001.01 immediately prior to the parties' 1978 marriage. The profit sharing account was rolled over into the aforementioned IRA in December 1984; however, this does not affect its classification as marital or non-marital property. (See Ill. Rev. Stat. 1985, ch. 40, pars. 503(a)(2), (a)(6), (b).) In the judgment, the court stated, inter alia :

"[The] Petitioner never conveyed or transferred any interest that he had prior to marriage in his Sears Profit Sharing Account $100,000.00 of which he rolled over into an I.R.A. Account [ sic ] and that said accounts have a present value of $130,000.00 and this the Court finds to be non-marital property and awards the same to the Petitioner. Likewise the Petitioner kept as his sole property all right, title and ...


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