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09/29/89 In Re Marriage of Frances J. Harding

September 29, 1989

IN RE MARRIAGE OF FRANCES J. HARDING, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION

and ROBERT H. HARDING, Respondent-Appellee

545 N.E.2d 459, 189 Ill. App. 3d 663, 136 Ill. Dec. 935 1989.IL.1576

Appeal from the Circuit Court of Cook County; the Hon. James L. Harris, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. EGAN, P.J., and LaPORTA, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Petitioner, Frances J. Harding, and respondent, Robert H. Harding, were married on June 26, 1954. Dissolution proceedings were instituted in January 1984, and on February 25, 1988, the trial court entered a judgment dissolving the marriage, awarding custody of the parties' youngest child to petitioner, and disposing of contested matters of property, child support and maintenance. In connection with the distribution of property, on March 4, 1988, the trial court entered a qualified domestic relations order distributing a portion of the Robert H. Harding, M.D., Ltd. Second Restated Employees' Pension Plan and a portion of the Robert H. Harding, M.D., Ltd. Second Restated Employees' Retirement Plan to petitioner. On June 8, 1988, the trial court denied petitioner's section 2-1203 motion to vacate the judgment and/or for a rehearing, retrial or modification of the judgment. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1203.) Petitioner appeals. The dissolution is not at issue.

At the time of trial, petitioner was 56 years old and respondent was 61. The parties had four children: Pamela, age 28; Rhonda, age 26; Laura, age 19; and Andrea, age 14. Laura was attending the University of Wisconsin, and Andrea was living in the marital home with petitioner.

Prior to the parties' marriage, petitioner graduated from nursing school and received a registered nursing certificate. Respondent graduated from the Marquette Medical School in 1953. After the parties married, they moved to Cleveland, Ohio. Respondent completed his residency in dermatology at a Cleveland clinic while petitioner worked as a nurse at the clinic and as a private duty nurse. The parties remained in Cleveland for three years. During that time, they lived on petitioner's income and on the $1,000-per-year fellowship which respondent received during his residency.

In July 1957, the parties moved to the Chicago area and respondent opened his medical practice in Arlington Heights. Petitioner initially worked as a nurse for another doctor in respondent's office. Petitioner worked each morning and part of the afternoon for the other doctor, and then she worked for respondent and answered his telephone. Petitioner continued employment outside the home until April 1958, when she gave birth to the parties' first child. After that, all of the files and financial cards of respondent's patients were brought home, where petitioner worked on them. One room of the parties' home was set up as an office where petitioner worked on respondent's books. Petitioner estimated that she prepared billings for 700 to 800 patients per month. Petitioner also monitored and prepared billings for overdue accounts.

Each day after work, respondent took the day's receipts in cash and in checks, as well as all of the mail, to the marital home and turned them over to petitioner. The cash averaged $1,000 per week. Petitioner added up the cash and put the total amount on top of the daily sheet. She also kept a record of the gross receipts. She sent the daily gross income figures to William Hogan, the parties' business manager, each month.

Petitioner testified that she placed the cash received from respondent's medical practice each week in a drawer in their home. She then used the $1,000 cash each week to pay for food, dry cleaning, gas, and other family expenses. Petitioner wrote a check each week on the parties' personal account in the amount of the weekly cash collected. She deposited that check into the corporate bank account for respondent's medical practice. Petitioner also deposited a check for $7,200 each month from the business account into the joint account for living expenses.

Respondent testified that this was the practice followed by the parties during the course of their marriage, but stated that the amount of cash kept in the drawer was approximately $50. Respondent had no contact or control over the monies he turned over to petitioner. Additionally, petitioner signed both parties' names to all tax returns and hired consultants, financial advisors and accountants. Respondent testified that he occasionally wrote checks.

In addition to the daily receipts from respondent's practice, all of the bookkeeping records were sent to petitioner. The office receptionist sent home a list of all the patients seen that day and the amount of the charge. The patient cards also were sent home. Each day, petitioner opened all the records that were sent home and sorted through the patient cards. She prepared account cards for new patients and entered the appropriate data on all patient cards.

Once each week, petitioner photocopied and filed the checks. Petitioner then asked one of the children to endorse all of the checks with a stamp. Pamela, the oldest child, testified that when she was a child, she helped her mother file biopsy slips, and alphabetize and endorse checks. Petitioner had a part-time typist helping her at home with the work from respondent's medical practice.

Petitioner additionally handled patient inquiries regarding their bills and insurance information. She processed insurance forms and handled problems with unemployment compensation. Petitioner paid all of the bills and prepared the payroll.

Petitioner testified that she spent 45 to 50 hours per week just to keep the books of the medical practice current. Pamela testified that petitioner worked on the paperwork for 12 to 14 hours a day, 7 days a week. Hogan testified that in his opinion, 100 hours a week "might be a bit long," but stated that the paperwork for respondent's practice required a staff of two or three people. Petitioner began drawing a salary for her work in 1969. During the last two or three years she was involved in respondent's practice, she grossed approximately $25,000 per year. On the advise of Hogan, petitioner placed the children on the payroll for the work which they performed for the medical practice. During the four-year period from 1980 to 1984, the children were paid a total of $45,000 in gross wages for the work they performed.

Respondent testified that he worked 70 hours a week, 10 to 14 hours daily during his peak years. He stated that he saw 600,000 patients in 30 years. Various witnesses testified that respondent saw 60 to 75 patients per day, or 400 to 600 patients per week. Hogan testified that respondent's practice was in the 90th to 95th percentile in terms of volume. Respondent stated he was in the top 2% of the dermatologists in the country in terms of the volume of patients. Respondent went on very few vacations, although he attended some medical conventions.

Both parties are in relatively good health. Respondent is a diabetic. He walks 15 miles a week and plays golf three times a week. Petitioner is under the care of a physician for hypertension, for which she takes medication. She suffers from arthritis in the pelvis, knees, neck and hands, and takes aspirin to relieve the symptoms of her arthritis. Petitioner additionally suffers from a chronic bladder infection, for which she takes medication.

Both parties were collectors of various items. Respondent had a military history library of 16,000 volumes and other war memorabilia. He valued the collection at $150,000. Petitioner had a stamp collection. She testified that over the years, she spent $175,000 on stamps. Respondent testified that petitioner actually had spent between $200,000 to $225,000 on the collection. An expert, however, appraised the stamp collection, as it existed in August 1987, and set its value between $8,000 and $12,000. Petitioner additionally collected playing cards. An appraiser placed a value of $2,000 to $3,500 on that collection.

During the course of the marriage, the parties entered into several investments. They purchased an interest in development property in Hawaii for $42,000. They purchased an interest in two motels in Arizona. The Arizona motel investment currently generates $429 per month. The parties also purchased property in Colorado for $10,000. Respondent testified that this property now is worth only $1,000. In addition to the investment properties, the parties own a home in Mount Prospect, valued at $300,000, and a condominium in Lake Geneva, valued at $54,500. They also jointly own a vacant lot in Barrington. Respondent has an interest in a medical laboratory valued at approximately $1,000.

Petitioner testified that in 1969, the parties borrowed $30,000 from her mother in order to pay for some investments they made at the recommendation of their financial advisors. The note, dated November 22, 1969, had not been repaid, although beginning in 1970, the parties commenced paying petitioner's mother 8% interest on the note and took an interest deduction on their joint income tax returns. Petitioner signed both her name and respondent's name on the note. Respondent testified that he was not aware of the loan but that he imagined his accountant would be aware of it.

Respondent testified that he had several money accounts. The defined benefit plan showed a value as of December 31, 1987, of $970,570.82 and the money purchase plan showed a value of $873,383.04 as of the same date. Additionally, the Robert H. Harding, M.D., Ltd. Trust showed a value on that date of $709,722.80. Respondent's personal interest in the pension and profit-sharing plans was between $45,000 and $75,000.

The parties ceased living together on February 8, 1984. At that time, petitioner's employment with the medical practice ended, and she has had no employment income since then. At the time of trial, petitioner had approximately $2,200 in her two checking accounts. Respondent testified that he had $6,000 or $7,000 in his checking account and approximately $1,700 in his money market account. A statement from his money market account, however, reflected that as of December 7, 1987, the balance in the money market account was $14,703.88 and the balance in the checking account was $3,750. Respondent testified that he had transferred $8,000 from the money market account to the checking account. He also testified that he had made additions to the account since December 7, 1987.

On March 7, 1984, an agreed injunction order was entered restraining and enjoining the parties from "withdrawing, spending, disposing of, gifting, destroying, removing, encumbering, transferring, damaging, pledging, hypothecating, or otherwise dealing with" a specified list of properties. Among the properties listed were the living trust account of each party and respondent's medical practice.

Despite the injunction, petitioner reduced her living trust account by approximately $100,000 during the four years in which the dissolution proceedings were pending. She stated that the funds were needed to meet her monthly expenses. Prior to the withdrawal of the injunctive order, respondent sold his medical practice to Dr. Scott Glazer. Respondent used $53,868 of the proceeds from the sale to purchase property located at 1220 Vine Street.

The trial court determined that the parties' assets and liabilities were as follows:

Liabilities

Promissory Note to petitioner's mother $30,000

Mortgage on 1220 Vine Street property 131,136

Total Liabilities 161,136

Assets

Marital Home 300,000

Lake Geneva Condominium 54,500

Barrington Lot 50,000

Equity in 1220 Vine Street ...


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