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09/02/87 In Re Marriage of Prentiss Hawkins

September 2, 1987

IN RE MARRIAGE OF PRENTISS HAWKINS, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and ARLENE HAWKINS, Respondent-Appellee

513 N.E.2d 143, 160 Ill. App. 3d 71, 111 Ill. Dec. 897 1987.IL.1279

Appeal from the Circuit Court of Jefferson County; the Hon. George W. Timberlake, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS* delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This appeal arises out of a dissolution of marriage proceeding in which the trial court, following a bifurcated hearing, apportioned the parties' property pursuant to a settlement agreement between the petitioner, Prentiss Hawkins, and the respondent, Arlene Hawkins. The dissolution action was commenced, after a lengthy marriage, on July 9, 1984, and proceedings were conducted on a bifurcated basis with the grounds being heard first. The dissolution of marriage was entered on September 11, 1984, and all remaining issues were reserved. On August 20 and 22, 1985, a trial was conducted on all remaining issues, and a judgment on those issues was entered on December 18, 1985. Post-trial motions were disposed of on April 28, 1986, with some minor adjustments being made, and the petitioner's appeal followed.

On appeal the husband, the petitioner in the trial court, contends that the trial court erred (1) in failing to adhere to the terms of the marital settlement agreement between the parties and divide their marital estate in equal shares, (2) in improperly dividing the parties' marital debts, (3) in ordering reimbursement for social security payments and contribution of non-marital property, (4) in charging the petitioner for his post-separation occupancy of the marital residence, and (5) in failing to consider the tax implications of a subsequent sale of property upon its value.

The major asset of the parties' marriage was a fruit orchard and nursery business, which, along with the parties' residence located on the orchard property, was valued at $239,000 as of the date of dissolution. Following dissolution of the parties' marriage in September 1984, the petitioner continued to live in the marital residence and operate the orchard as he had during the marriage. The petitioner testified that he had paid himself a salary from the business during that time and had further paid some of the marital debts from the proceeds of the 1984 harvest of the orchard. At the time of the hearing on property matters in August 1985, the marital debts totaled approximately $30,000. The petitioner testified at that time that the proceeds of the 1985 harvest would about equal the amount of the remaining debt.

At the August 1985 hearing, the parties stipulated that they had agreed that the marital estate should be divided equally between them at values to be determined by the court. The trial court expressly approved this agreement and proceeded to value the property and determine which items of property were to be awarded to each party. In relevant part, the court awarded the orchard business and marital residence to the petitioner and further ordered the petitioner to pay the marital debts of $30,000. The court observed that the petitioner had continued to operate the business during the year since the dissolution of marriage and concluded that since the

"ownership of the business itself was not disposed of and has not been disposed of until today. . . the profits accruing thereto, including the crop which is now being harvested, shall be applied to the business. And the way that that will be applied is that the debts will be paid . . . entirely by [the petitioner]."

The trial court awarded the respondent a cash amount for her one-half interest in the orchard business, including real estate and equipment. The court further awarded the respondent an additional $10,000 because of a "disparity" resulting from social security contributions made on the petitioner's behalf during the marriage and the respondent's contribution of an inheritance constituting a nonmarital asset to the marital estate. Finally, the court found that payments made by the petitioner to the respondent during the period since the dissolution, which were to be treated as an advance of her share of the marital estate pursuant to an interim agreement, were offset by the value of the petitioner's continued occupancy of the marital residence for the period from the parties' separation until the judgment disposing of property matters.

The petitioner has appealed from this judgment, contending that the court's award of marital property resulted in an unequal division contrary to the parties' agreement that the marital estate was to be divided equally between the parties. In response to this argument, the respondent asserts that no enforceable agreement existed and that the court's division of marital property should be upheld as within the trial court's discretion.

Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 502(a)) provides that parties to a marriage may, in order to promote amicable settlement of ...


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