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01/05/88 In Re Marriage of Thelma Kathryn Frazier

January 5, 1988

IN RE MARRIAGE OF THELMA KATHRYN FRAZIER,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

Petitioner-Appellee, and WILLIAM TUCKER FRAZIER,

Respondent-Appellant

517 N.E.2d 775, 164 Ill. App. 3d 207, 115 Ill. Dec. 364 1988.IL.2

Appeal from the Circuit Court of St. Clair County; the Hon. Milton Wharton, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. WELCH and KARNS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

On April 5, 1983, the circuit court of St. Clair County entered a judgment which dissolved the marriage of petitioner, Thelma Kathryn Frazier, and respondent, William Tucker Frazier, and distributed the parties' property between them. From that judgment respondent appealed. We then reversed and remanded with instructions to revaluate respondent's interest in his insurance agency and to redistribute the parties' marital property. (In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 466 N.E.2d 290.) On remand another hearing was conducted, and the circuit court entered an order in accordance with our instructions. Respondent has now appealed for a second time. We affirm.

On this appeal, respondent has submitted a lengthy brief raising numerous issues for our review. After examining this brief, petitioner's brief, and respondent's reply, and upon consideration of the contentions of the parties at oral argument, we have concluded that there are, in fact, only two basic issues we must decide: (1) whether the circuit court erred in its valuation of respondent's insurance agency and (2) whether the circuit court abused its discretion in allocating the parties' marital property. We shall consider each of these issues in turn.

Respondent's insurance agency was described in our previous opinion in this case. No purpose would be served by repeating that description here. We note again only that if respondent's agency agreement were terminated, he would become entitled to termination benefits. If termination were to occur after respondent turned 65 and after he had completed 20 years of service as an agent, he would also be entitled to extended termination benefits, to be paid after primary termination benefits had ceased, until the end of his life. 125 Ill. App. 3d at 475, 466 N.E.2d at 292.

In the order from which this appeal is taken the circuit court determined that the agency has no fair cash market value with the exception of the termination benefits. Respondent does not challenge this finding. What he does dispute is the circuit court's additional finding that the termination benefits have a present value of $75,709.65.

Respondent's objection to this figure is threefold. First, he argues that the discount rate used in making the present value computation was arbitrary. The record shows, however, that the rate adopted by the circuit court, 10%, was amply supported by expert testimony. Second, respondent asserts that the present value computation did not take into account the taxes which would be due on the termination benefits when they were paid. The flaw in this argument is that the court was not required to adjust its present value computation for taxes. Section 503(d)(11) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 503(d)(11), provides only that "the tax consequences of the property division upon the respective economic circumstances of the parties" are among the relevant factors to be considered by the court. Testimony as to such tax consequences was presented to the trial court here, and there is no basis for concluding that they were not properly considered.

Finally, respondent contends that the termination benefits have no value at all because he is not yet eligible to receive them. This is simply wrong. The evidence presented to the trial court, including the testimony of respondent himself, unequivocally established that respondent would, in fact, be eligible to receive such benefits now if his agency were terminated. What respondent does not yet qualify for are extended termination benefits, but these benefits were not included in the court's present value computation.

The distinction between primary and extended term benefits is immediately apparent upon even a cursory review of the record. So obvious is this distinction that we do not believe that it could be overlooked through mere inadvertence. Yet, in his main brief, his reply brief, and even at oral argument, respondent's attorney, John R. Sprague, made arguments to this court as if the distinction did not exist. Even after the error was pointed out by counsel for petitioner, respondent's counsel persisted, without explanation, in misrepresenting the evidence on this issue. We believe that such conduct comes perilously close to violating the professional obligation imposed upon Mr. Sprague by Rule 1 -- 102 of the Code of Professional Responsibility (107 Ill. 2d R. 1 -- 102). Mr. Sprague ...


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