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11/17/87 In Re Marriage of Iona Smith

November 17, 1987

IN RE MARRIAGE OF IONA SMITH, PLAINTIFF-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

GAINES N. SMITH, Defendant-Appellant

516 N.E.2d 777, 162 Ill. App. 3d 792, 114 Ill. Dec. 622 1987.IL.1696

Appeal from the Circuit Court of St. Clair County; the Hon. Richard A. Hudlin IV, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS* delivered the opinion of the court. HARRISON and WELCH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The instant marriage dissolution case comes to this court for a second time, following initial judgment in the trial court in 1979 and subsequent appeal to this court in 1980. Upon appeal to the supreme court in 1981, that court reversed in part and remanded for rehearing. In 1983 the governing statute was amended, and, in 1985, the trial court entered a second judgment, from which this appeal is taken. Upon appeal from the trial court's rulings on property, maintenance and attorney fees, this court must first determine whether the amended statute, effective August 19, 1983, was applicable to the hearing on remand held after that date or whether the cause must be governed by the law in effect at the time of the original hearing. We hold that the trial court, upon remand, properly applied the law in effect at the time of the original hearing and we, accordingly, affirm in part and reverse in part.

The procedural history of this case is relevant to our determination and may be summarized as follows. The plaintiff, Iona Smith, filed a petition for dissolution of marriage in November 1977. The cause was heard in October 1978, and the original judgment was entered on January 3, 1979. After hearing and argument on the plaintiff's post-trial motion, an amended judgment was entered on April 25, 1979.

The plaintiff appealed and, on October 15, 1980, this court affirmed in part and reversed and remanded in part. In re Marriage of Smith (1980), 90 Ill. App. 3d 168, 412 N.E.2d 985.

The defendant, Gaines N. Smith, appealed and, on October 21, 1981, the supreme court affirmed the circuit and appellate courts in part, reversed in part, and remanded for further hearing in accordance with its opinion. In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239.

A second hearing was held in the trial court in November 1984, and the last judgment was entered June 21, 1985. The defendant, upon denial of his post-trial motion, filed this appeal from the 1985 judgment.

Following the decision of the supreme court but prior to the trial court's hearing upon remand, Public Act 83-129 was signed into law on August 19, 1983. That public act amended sections 401 and 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 401, 503) (hereinafter the Dissolution Act) and substantially changed the law relating to the treatment of commingled property in marital dissolution proceedings. Section 2 of Public Act 83-129 provided as follows:

"This Act takes effect upon its becoming a law, and applies to actions filed prior to and pending on the effective date of this amendatory Act of 1983, and actions filed on or after its effective date." (Emphasis added.) Pub. Act 83 -- 129, eff. August 19, 1983.

It is generally accepted that Public Act 83 -- 129 constituted a legislative rejection of the rationale of the supreme court's holding in In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239. (See In re Marriage of Brown (1984), 127 Ill. App. 3d ...


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