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02/25/94 MARRIAGE BARBARA HEINZE

February 25, 1994

IN RE THE MARRIAGE OF: BARBARA HEINZE, PETITIONER-APPELLEE, AND KENNETH HEINZE, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 89D18. Honorable John M. Telleen, Judge Presiding

As Modified on Denial of Rehearing March 31, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

MODIFIED ON DENIAL OF REHEARING

Justice McCUSKEY delivered the opinion of the court:

The respondent, Kenneth Heinze, appeals from a judgment entered in a dissolution of marriage proceeding. The judgment divided the property of the parties and awarded custody of the minor children to the petitioner, Barbara Heinze. The respondent also appeals from an order which modified portions of the judgment following post-trial motions.

ISSUES

The respondent raises four issues on appeal. He claims the trial court erred when it: (1) did not consider book royalties received by the petitioner as marital property; (2) denied the respondent's request for joint custody of the minor children; (3) found that $15,000 the respondent transferred to his parents was marital property; and (4) failed to properly value and divide the parties' marital property.

Following our review of the record and persuasive authority from other jurisdictions, we conclude that the trial court erred when it failed to classify as marital property the future book royalties generated from four books written by the petitioner during the marriage. The petitioner's future book royalties should have been classified and allocated as marital property. Therefore, we modify the judgment to award the respondent 25% of the future book royalties generated by four books the petitioner wrote during the marriage.

As to the other issues raised on appeal, we have carefully considered the respondent's arguments and find they are without merit. Accordingly, we modify that portion of the judgment which related to the classification and allocation of the future book royalties. The balance of the judgment is affirmed.

FACTUAL BACKGROUND

The petitioner and her coauthor, Karin Johnson, have written six books on the subject of speech therapy. Both authors have contracts with Lingui Systems (Lingui) which generate book royalties. Lingui publishes the books and pays royalties after the books are sold. The petitioner testified that five of the books were written during the marriage. The parties' marriage was dissolved in a judgment entered March 1, 1990. One book was written in 1990, following the dissolution (1990 book). Accordingly, we find that all royalties generated by the 1990 book are the petitioner's nonmarital property. Also, one of the petitioner's books is no longer in publication. Therefore, only four books written during the marriage are still being published by Lingui (four books).

In 1984, the petitioner began receiving book royalties from Lingui. She testified she received approximately $46,000 in royalties during the period from 1984 through 1988. During 1989, the petitioner received an additional $13,696.44 in royalties. In 1990, she received royalties of $12,016.27. Finally, the petitioner received approximately $13,000 in royalties during 1991. Approximately one-third of the royalties received in 1991 were generated from the sales of the 1990 book.

The petitioner provided the trial court with a detailed itemization and explanation of how she spent the royalties received from 1989 through the date of the dissolution. She said that the royalty income was used for the living expenses of the family. Therefore, we conclude that this royalty income was spent on family expenses and is clearly not subject to division.

The petitioner said the royalties are totally contingent upon the number of books sold by Lingui. She stated that future book sales are enhanced by the fact she participates in workshops and gives speeches on the subject of speech therapy. Mark Barrett, chief marketing officer with Lingui, testified in his evidence deposition that there are no plans to discontinue publication of any of the petitioner's five books. However, Barrett indicated that he could not predict how long any of the books would continue to be published by Lingui. He also stated there was no way anyone could calculate future book sales or compute the amount of future book royalties.

Following this testimony, the trial court denied the respondent's claim regarding the petitioner's future book royalties. The court found the royalties were ...


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